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HIGH COURT OF JUDICATURE OF ALLAHABAD

Civil Misc.Writ Petition No.19414 of 1990

Laxmi Narain Vs. Dy.Director of Consolidation , Varanasi & another

Hon. Janardan Sahai,J

The dispute relates to plot no.442/2. It appears t hat a portion of this plot no.442/2 was purchased by the petitioner. Another
separate portion of the plot has been purchased by the original respondent no.2, Prabhu Nath Tewari who has since been substituted
by his heirs. Respondent no.2 filed an application before the Settlement Officer, Consolidation under Section 5 (i) (c) (i) of the
U.P.Consolidation of Holdings Act for permission to raise constructions over the plot purchased by him. His case was that he has
his ancestral house adjoining the plot purchased by him and he wants to extend the abadi. The application was allowed by the Settlement
Officer, Consolidation by the order dated 12.7.89 and the respondent no.2 was given three months' time to make the constructions.
It appears that subsequently this plot was allotted to the petitioner and an application was filed by the petitioner for setting
aside the order dated 12.7.89 granting permission. The Settlement Officer, Consolidation by an order dated 26.2.90 cancelledl the
permission. The copy of that order has been annexed as Annexure 3 to the writ petition. From the recital in that order it appears
that the petitioner had alleged that he was a cotenant of the disputed land and that the plot had also been allotted to him. There
is no finding in this order that the constructions had not been made by the respondent no.2 within the time granted. It also appears
that respondent no.2 filed objections under Section 20 of the Act in which he had also prayed that the plot in dispute be made chak
out in view of the permission granted to him by the Settlement officer, Consolidation. The said application was dismissed by the
Consolidation Officer by the order dated 28.3.90, The Consolidation Officer found that the prayer to make the plot chat out could
not be granted within the scope of Section 20 of the Act under which objections relating to chak allotment alone were maintainable.
Consequently the objections filed by the respondent no.2 were found to be non maintainable. Although the objections were dismissed
as non maintainable it was observed by the Consolidation Officer that no constructions had been raised by the respondent no.2. The
respondent then filed a revision against the order dated 26.2.90 of the Settlement Officer, Consolidation allowing the application
of the petitioner for recalling the permission granted. The revision of the respondent has been allowed by the Dy.Director of Consolidation
by his impugned order dated 20.7.90. The Dy.Director of Consolidation has recorded a finding that the petitioner is not a cotenant
of the disputed plot and in support of this finding he has relied upon an order of the Asstt. Consolidation Officer for entering
the name of the respondent no.2 alone over the plot. This finding also appears to be correct in view of the averment made in para
11, sub-para (viii) of the writ petition that the petitioner and the respondent no.2 had purchased different portions of the same
plot. The petitioner thus is not having any interest in the portion purchased by the respondent no.2. The other finding recorded
by the Dy. Director of Consolidation is that the statement of proposals allotting the plot in dispute in the chak of
the petitioner was made barely two months after the permission had been granted and till then the time for making constructions
allowed by the Settlement Officer, Consolidation had not run out. On this finding the Dy,Director of Consolidation allowed the revision
of the respondent no.2.

I have heard Sri Sankatha Rai assisted by Sri Pradeep Rai counsel for the petitioner and Sri Raj Kumar Singh holding brief of Sri
I.N.Singh counsel for the respondents.

It is submitted on behalf of the petitioner that the order dated 28.3.90 of the Consolidation Officer dismissing the objections
of the respondent no.2 had become final and consequently the Dy. Director of Consolidation could not have passed t he impugned order.
The submission does not appear to have any force. The objections of the resapndentno.2 were dismissed as not maintainable on the
ground that the relief which was being sought was beyond the scope of Section 20 of the Act. The mere fact that there is a recital
in the order of the Consolidation Officer dated 28.3.90 that the constructions had not been made by the petitioner, the truth of
which is disputed by respondent no.2 cannot preclude the right of the respondent no.2 to agitate the matter in proceedings under
Section 9 of the Act when his objections under Section 20 were dismissed by the Consolidation Officer as not maintainable. Respondent
no.2 has indeed filed objection under Section 9 (b) of the Act copy of which is annexure CA I which is said to be pending. In the
rejoinder affidavit the fact of pendency of any such objection is disputed but the averment has been made vaguely and no copy of
any order disposing of the objections has been filed by the petitioner. Moreover in this case we are concerned with the validity
of the order passed by the Dy.Director of Consolidation restoring the order granting permission and so far as that is concerned,
the reasons given by the Dy. Director of Consolidation that the petitioner's representation to the Settlement Officer, Consolidation
of being a cotenant was wrong and that the allotment was erroneously made in favour of the petitioner even before the time, to make
constructions, granted to the respondent had run out appear to be sound.

In the result the writ petition lacks merit and is accordingly dismissed.

Dt:3.11.06sm

Wp19414/90

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